Medical Malpractice Claims Study

One of the driving forces behind tort reform in malpractice, both in Maryland and around the nation, is that these claims are usually frivolous and result in undeserved compensation for patients and their medical malpractice lawyers.

This month, the New England Journal of Medicine addressed this issue in a study of 1,500 randomly selected malpractice cases. The neat thing about the study is that impartial doctors reviewed the experts’ opinions in the pending cases and then assessed whether each patient was injured and, if so, whether medical malpracitice was the cause of the patient’s injury. In a way, they allowed the independent experts to act as judge and jury.

You might expect the impartial reviews of doctors to be biased toward findings of no medical negligence. But the study found that 63% of the injuries were found to be the result of medical malpractice.

More importantly, the study found the system generally works. Of valid medical malpractice claims, most received compensation. In contrast, where the impartial doctors found no medical malpractice, those patients generally did not recover. The study further found that healthy people successfully suing physicans for medical malpractice is very uncommon and is far outnumbered by instances where medical malpractice goes unreported.

This is another blow to the claim that we need medical malpractice reform in Maryland. After claiming a crisis of unprecedented proportions last year Medical Mutual, Maryland’s largest medical malpractice insurance carrier, announced that medical malpracitce insurance rates would not rise in 2006, presumably because claims fell from $93 million in 2003 to $78.5 million in 2004.

I think most Maryland doctors have realized this and have begun to focus their energies towards reform of their negotiating rights with health insurance companies as to the rates of compensation for medical services. Time Magazine wrote an interesting cover story on this last week.

Other interesting findings in the study:

1. Most malpractice claims are the result of medical malpractice. This is a dagger to the heart of the notion that most malpractice cases are manufactured by medical malpractice lawyers. In 63% of the cases where impartial doctors found an injury, it was found to be the result of medical malpractice. Perhaps even more significantly in this battle for tort reform in Maryland and elsewhere, few of the claims where no medical malpractice was found were considered frivolous. The authors wrote that the claims where the impartial doctors found no medical malpractice did not square with the notion of opportunistic personal injury lawyers pursuing lawsuits that lacked merit. Rather, the authors stated their findings underscored “how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.” In other words, while they may have found no medical negligence, they can see how the personal injury lawyers and their victims thought there was negligence before discovery had been conducted.

2. 85% of medical malpractice cases reviewed resulted in a settlement before trial.

3. In 8% of medical malpractice cases that went to trial, the defendant doctors prevailed.

My standard response to an adjuster’s request for a statement by my client is that I would be happy to schedule a joint meeting at which they may take a statement from my client and I may take a statement from their insured. Adjusters invariably tell me that is against company policy, and I tell them it is against my firm policy to give pre-suit statements without such reciprocity. This approach shuts them up and leaves them no room to complain about a lack of cooperation. I don’t know that it makes any substantial difference in outcomes, as compared with just refusing, but it feels good.

Harvey

I just finished my deposition. It was 3.5 hours. They sent me a copy and wanted me to correct anything necessary. They gave me 30 days. Is this the proper way to do this?

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